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Filed TODAY. Q's: re: Extra Atty Fees, 401k loan repay in 8th circt

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    Filed TODAY. Q's: re: Extra Atty Fees, 401k loan repay in 8th circt

    Hello. As you may (or may not) have read in my previous postings, we are filing 7 over median...almost twice median in fact. I should say, we FILED 7, as of this morning.

    I expected to file a 13, but we passed Part 3 of the Means Test by a good margin, so the Presumption Does Not Arise, and so I hope the UST will see it the same way.

    BUT....if not. If we do get the classic 707(b) objection, I have a few questions.

    On the Disclosure of Compensation of Attorney for Debtor in our paperwork, our atty had crossed out section 5(d), which reads,

    In return for the above disclosed fee, I have agreed to render legal service for all aspects of the bankruptcy case, including:

    Representation of the debtor in adversary proceedings and other contested bankruptcy matters.


    He then filled in part 6, and had us sign. In part 6, it says,

    By agreement with the debtor, the above disclosed fee does not include the following services:

    In the event that any further legal representation is required after the 341 meeting, including but not limited to, responding to any objection to exemptions, requests for turnover of property, further examination of the debtor following the 341 meeting, defending any adversary proceedings for nondischargeability of debt or denial of discharge, defending 707(b) Motion to Dismiss, or providing any legal services for any other unanticipated problem, XXXX P.C. will represent the debtor only upon receipt of a further retainer to be determined, which will be applied to additional services chargeable at (A BOATLOAD OF MONEY) per hour, plus expenses. Unless satisfactory arrangements are made, XXXX P.C. will not provide further legal services to the debtor following the 341 meeting.


    Is it normal for attorneys to do this????

    I thought the fees paid to the attorney, which by the way were higher than the going rate around here above the $299 filing fee, were all-inclusive in getting through the CH 7. The Disclosure of Compensation as much indicates that in part 5, which he just struck part out.

    I feel like we were hung over a barrel, as this was presented as the last paper to sign, AFTER we had been through everything else. I am NOT happy about it, and feel rail-roaded, unless one of you attorneys or paralegals on here tells me this is normal.

    I am quite concerned there WILL BE a 707(b) objection and we will have to contest, so now I'm going to hafta find money I don't have to pay for representation in these matters, except the rainy-day savings we have stashed, that he, of course, knows about. I thought it would be included.

    Also, I have been reading on this Board that in many circuits, 401k Loan repayments are NOT considered an expense in a CH 7, but our attorney did not question it as such in our schedules, so am I to guess the 8th Circuit does not make a fuss about them?

    I won't at all be surprised if in the end, this somehow gets pushed into a 13, which I expected to have to file in the 1st place.
    Filed CH 7 Sept. 2011 - UST Motion to Dismiss (presumption of abuse) Dec. 2011 - Converted to CH 13 Feb. 2012 - Plan Confirmation May 2012 - Expected Discharge June 2017

    #2
    One last quick question....is it normal, if not ethical, for a UST to object to your CH 7 because you are paying too much a month for your house, which is precluding you from paying your unsecured debt? Can they MAKE you move out of your home - surrender it - as a pre-requisite of filing BK because the value is under water to what is owed (only on a 1st mortgage, no 2nd). Can the UST REQUIRE you to move into a smaller house, or even an apartment!?
    Filed CH 7 Sept. 2011 - UST Motion to Dismiss (presumption of abuse) Dec. 2011 - Converted to CH 13 Feb. 2012 - Plan Confirmation May 2012 - Expected Discharge June 2017

    Comment


      #3
      For what it's worth, I filed a 13, but it seems that I too signed paperwork that in so many words said I'd basically be covered just through the 341. I also received a list of services that I might need for various fees. Because of this I hate to have to ask my attorney any questions, for fear that I'll end up with some big invoice I can't pay.

      Comment


        #4
        They cannot object to your mortgage. If you were renting and above the IRS standard for your area, they can object, but for your secured-debt mortgage, you're in the clear.
        Filed Chapter 13 on 2-28-10. 341 completed 4/14/10. Confirmed 5/14/10. Lien strip granted 2/2/11
        0% payback to unsecured creditors, 56 payments down, 4 to go....

        Comment


          #5
          It is normal for an attorney's fee to only cover work through the 341, and not include adversary proceedings. Hopefully, that was in the fee agreement you signed.

          If you have to pay additional fees and then wind up converting to a 13, I am pretty sure the additional attorney fees can be paid in the plan and will simply reduce what goes to unsecured creditors. If you have to pay additional fees and get your Chap 7 discharged, I would say it's money well spent to keep out of a 5 year chap 13.
          LadyInTheRed is in the black!
          Filed Chap 13 April 2010. Discharged May 2015.
          $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

          Comment


            #6
            Thank You LITR....I was hoping for more replies, but as a mod, I'm hoping you know quite a bit on the subject, so I can accept that, if it is the norm.
            Filed CH 7 Sept. 2011 - UST Motion to Dismiss (presumption of abuse) Dec. 2011 - Converted to CH 13 Feb. 2012 - Plan Confirmation May 2012 - Expected Discharge June 2017

            Comment


              #7
              Since you expect a possibly bumpy ride it shouldn't come as a huge surprise that the attorney is covering his butt as well. I had about the same type of agreement with our attorney. All was well, and a lot smoother than we expected, so the fee arrangement was just fine. Our was certainly more expensive than the normal rate around here, but worth every cent.

              I'm not too wild about the "oh...one more thing" presentation of the fee arrangement though. Our attorney was up front about the possibility of additional costs, so only guaranteed a fee schedule up to and including the 341, with an a-la-carte deal after that. Made it easy. And questions were free. I had a lot, so I submitted them to him via email so he could call me back with answers at his convenience. Worked out great for all.

              Post-discharge, you might consider a kind suggestion to your attorney regarding his bedside manner. Professionals generally appreciate feedback aimed at improving their clients' experiences.

              As for the mortgage - no worries. Secured debt is secured debt, and treated differently than unsecured. Now, a Trustee might ask you how you plan to continue paying, or you may get a lecture from your Trustee, but you can handle that.

              Comment


                #8
                Originally posted by alorth View Post
                Thank You LITR....I was hoping for more replies, but as a mod, I'm hoping you know quite a bit on the subject, so I can accept that, if it is the norm.
                What I know on the subject as it relates specifically to bankruptcy, I know mostly from many hours reading this board. The fact that I'm a moderator doesn't mean I am more knowledgeable than other BKforum members. Stick around for a while and you'll be able to give the same kinds of responses I do! On this particular subject, it helps that I've worked for attorneys in other areas of the law for over 20 years, so have a perspective on billing issues in general from the other side of the desk.
                LadyInTheRed is in the black!
                Filed Chap 13 April 2010. Discharged May 2015.
                $143,000 in debt discharged for $36,500, including attorneys fees. Money well spent!

                Comment


                  #9
                  Charging a flat fee through the 341 is typical and so is charging additional fees (sometimes fixed - sometimes at an hourly rate) for anything thereafter. My firm charges hourly for anything that takes place after the 341 (except stuff incidental to the general administration of the case like reviewing and sending out the reaffs). All of the details are painstakingly laid out in the fee agreement. For any “adversary matter” a separate agreement is required. Litigation is expensive and no attorney will deal with such matters without compensation. However, I am concerned that the fee agreement you signed was altered at the last minute. That goes against the Code which provides as follows. . .


                  11 USC 526

                  Any contract for bk assistance between a debt relief agency and an assisted person that does not comply with the material requirements of this section, section 527 or section 528 shall be void and may not be enforced by any Federal or State Court or by any other person other than the assisted person.

                  11 USC 528

                  (a) A debt relief agency shall-
                  (1) not later than 5 business days after the first date on which such agency provides any bk assistance service to an assisted person, but prior to such assisted person’s petition under this title being filed, execute a written contact with such assisted person that explains clearly and conspicuously-
                  (A) the services such agency will provide to such assisted person; and
                  (B) the fees or charges for such services and the terms of payment.

                  11 USC 101(3)

                  The term “assisted person” means any person whose debts consist primarily of consumer debts. .

                  _____________________________

                  Assuming you are an “assisted person”. . .

                  Is what happened a problem for the attny? Probably not as the attny, regardless of the Code, would be entitled to payment under the theory of quantum meruit which means “reasonable value of services”. It is just bad business practice which makes for unhappy clients and a potential Bar complaint down the road.

                  Des.

                  Comment


                    #10
                    Thank you for your reply Des. I'm pretty satisfied now that the charges are normal. I don't believe he did anything against that code. He simply wasn't that "up-front" with the fee structure, either. So it is what it is.

                    Just in the "waiting game" now that its filed.

                    341 is Nov. 9th.
                    Filed CH 7 Sept. 2011 - UST Motion to Dismiss (presumption of abuse) Dec. 2011 - Converted to CH 13 Feb. 2012 - Plan Confirmation May 2012 - Expected Discharge June 2017

                    Comment

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